Koley v. Williams ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tyler Koley, No. CV 19-08038-PCT-DWL (JZB) 10 Plaintiff, 11 v. ORDER 12 Unknown Williams, et al., 13 Defendants. 14 15 INTRODUCTION 16 On January 11, 2018, officials at the Arizona State Prison Complex in Winslow, 17 Arizona conducted a routine search for contraband in inmates’ cells. During the search 18 process, Plaintiff Tyler Koley (“Plaintiff”) and his fellow inmates were removed from their 19 cells and told to put on their shoes. Plaintiff refused to put on his shoes, prompting a pair 20 of prison guards to place restraints on his hands and begin walking him away from the area. 21 Plaintiff, in turn, attempted to “protest” by sitting down on the ground and refusing to walk. 22 Defendants Matthew Theobald, Joseph Valdez, and Jackie Williams (“Defendants”) 23 were all located at least 20 yards away from Plaintiff as this struggle unfolded. Williams, 24 a canine officer, moved toward the disturbance and then released his dog. The dog bit 25 Plaintiff once in the back, causing Plaintiff to suffer minor injuries that healed without 26 complication. 27 In this civil rights action under 42 U.S.C. § 1983, Plaintiff alleges that Defendants 28 violated his Eighth Amendment rights. Specifically, Plaintiff alleges that Williams used 1 excessive force by unnecessarily deploying the dog, that Theobald and Valdez failed to 2 intervene, and that all three Defendants deprived him of adequate medical care. Now 3 pending before the Court is Defendants’ motion for summary judgment, which Plaintiff 4 opposes. (Docs. 44, 48, 50.) In a nutshell, Plaintiff argues that because his account of the 5 incident on January 11, 2018 differs from Defendants’ account—he contends he wasn’t 6 fighting with the guards and didn’t pose a threat to anybody, while Defendants contend he 7 was head-butting and kicking the guards—the presence of these factual disputes precludes 8 the entry of summary judgment. 9 As explained below, Plaintiff is mistaken. Although many details of the incident 10 are disputed, Plaintiff concedes (or doesn’t dispute) several key facts, including that he was 11 “struggling” with the guards right before Williams released the dog, that Williams was 12 unaware Plaintiffs’ hands were restrained at the time the dog was released, that the unusual 13 conditions on the prison yard on January 11, 2018 posed a particularly acute security risk, 14 and that Williams immediately pulled away the dog upon realizing that Plaintiffs’ hands 15 were restrained. Because there was no clearly established law in January 2018 prohibiting 16 the deployment of a dog in the prison context under these (or analogous) circumstances, 17 Williams is entitled to qualified immunity on Plaintiff’s excessive force claim. Meanwhile, 18 Plaintiffs’ remaining claims fail on the merits—Theobald and Valdez were too far away 19 from the fracas to have any reasonable opportunity to intervene and Plaintiff’s medical care 20 claim is undeveloped. 21 BACKGROUND 22 I. Underlying Facts 23 The facts set forth below are derived from the parties’ summary judgment 24 submissions (Docs. 45, 49), with all conflicts resolved in the favor of Plaintiff, the non- 25 movant. 26 On January 11, 2018, Plaintiff was an inmate at the Arizona State Prison Complex 27 in Winslow, Arizona. (Docs. 45, 49 ¶ 1.) Valdez was a Correctional Sergeant assigned to 28 1 the Coronado Unit, where Plaintiff was housed. (Id. ¶ 2.) Williams and Theobald were 2 Correctional Sergeants in the canine unit assigned to Coronado Unit. (Id. ¶¶ 3-4.) 3 That day, the Tactical Support Unit (“TSU”) conducted a quarterly search of the 4 prisoner housing areas for potential contraband. (Id. ¶ 5.) As part of the search, all 5 prisoners were strip-searched, then allowed to put their clothes back on, and then escorted 6 out of their housing areas. (Id. ¶ 6.) The prisoners were also directed to wear their shower 7 shoes, which are similar to sandals. (Id. ¶ 7.) The prisoners were escorted outside to gather 8 in specified areas of the yard, including the basketball court, until the search was 9 completed. (Id. ¶ 8.) The inmates were not restrained during this process. (Id. ¶ 9.) 10 It is undisputed that these conditions posed a heightened security risk. In their 11 separate statement of facts, Defendants assert that (1) in general, inmate disturbances pose 12 a security risk because they can agitate other inmates and incite further violence, and (2) 13 Defendants were particularly concerned about these risks on January 11, 2018 “due to the 14 number of inmates on the yard and the fact that none of the other inmates were restrained.” 15 (Docs. 45 ¶¶ 23-24.) In his separate statement of facts, Plaintiff admits in relevant part that 16 both of these facts are true. (Doc. 49 ¶¶ 23-24.) 17 During the search, Valdez was supervising the prisoners on the basketball court, 18 which was approximately 40 to 50 yards away from the entrance to the housing unit. (Docs. 19 45, 49 ¶ 18.) Williams’s role during the search was to conduct security patrols with his 20 dog and to escort prisoners to and from the gym. (Id. ¶ 19.) Initially, he was located about 21 20 yards away from Plaintiff. (Id. ¶ 26.) Theobald’s role was to escort other prisoners to 22 the gym, which was 150-200 yards away from Plaintiff. (Id. ¶ 20.) 23 When Plaintiff was told to put on his shower shoes by the TSU officers, he asked 24 whether he needed to put them on, explaining that when he was at another unit, the 25 prisoners did not have to wear their shower shoes when the weather was cold. (Docs. 45, 26 49 ¶ 10; Doc. 45-1 at 47.) A TSU officer told Plaintiff that he understood but the supervisor 27 wanted all prisoners to wear their shower shoes. (Id.) Plaintiff still refused to wear his 28 shower shoes. (Id.) In response, a TSU officer directed Plaintiff to put on his jacket and 1 prepare to be “cuff[ed] up.” (Doc. 45-1 at 48.) Plaintiff was then restrained with “flex 2 cuffs” or zip ties. (Id.) Two TSU officers then escorted Plaintiff outside his housing area. 3 (Id.) 4 The parties largely dispute what happened next. According to Plaintiff, one of the 5 TSU officers said, “Let’s place him down in the dirt.” (Id.) In response, Plaintiff told the 6 officers he would not “be demeaned” and that they could “take him to the hole,” that is, to 7 the isolation unit, and give him a disciplinary action. (Id.) At this point, Plaintiff stopped 8 walking. (Id. at 49.) The TSU officers, in turn, “tried to make [Plaintiff] walk towards 9 the . . . softball field.” (Id.) Plaintiff did not allow the TSU officers to make him keep 10 walking and instead “tried to sit down, like – in protest.” (Id.) Critically, Plaintiff admitted 11 during his deposition that, at this point in the encounter, he would “consider that struggling 12 with those officers.” (Id., emphasis added.) The TSU officers responded by “slamm[ing]” 13 Plaintiff to the ground in an “aggressive manner.” (Id.)1 Plaintiff contends that, after he 14 went to the ground, one of the TSU officers had control of his left arm and the other had 15 control of his right arm. (Id.) Plaintiff further contends that the two officers never lost 16 control of him. (Id. at 58.) And Plaintiff contends that he was not struggling after being 17 put on the ground, nor was he fighting, cursing, or kicking at the officers. (Id. at 57.)2 18 As noted, Williams (20 yards), Valdez (40-50 yards), and Theobald (150-200 yards) 19 were all located at least 20 yards away from where Plaintiff began struggling with the TSU 20 officers. When Williams observed the struggle, he walked toward it and then released his 21 dog. (Doc. 45-1 at 15-16.) Williams was about “half a foot away” from Plaintiff at the 22 time of release. (Id.) Williams testified, without contradiction, that he didn’t know 23 1 Defendants largely dispute Plaintiff’s version of these events. In his declaration, 24 Valdez avers that, when the two TSU officers were escorting Plaintiff outside, Plaintiff began to struggle with them, including “thrashing and attempting to kick and headbutt the 25 officers.” (Doc. 45-1 at 3 ¶¶ 12-13.) Similarly, Williams testified during his deposition that when he was about 20 yards away, he observed Plaintiff “being aggressive” with the 26 officers by “trying to strike back by kicking them and headbutting them.” (Id. at 9.) 27 2 Defendants dispute that Plaintiff was not struggling while he was on the ground. Williams testified that Plaintiff was “actively fighting” with the officers while he was on 28 the ground and he could hear the TSU officers telling Plaintiff to “quit resisting and quit fighting.” (Doc. 45-1 at 10.) 1 Plaintiff was restrained at the time he made this decision. (Docs. 45, 49 ¶ 27; Doc. 45-1 at 2 10.) Williams testified that the entire sequence, from when he observed Plaintiff standing 3 by the TSU officers to when Plaintiff was taken to the ground by those officers to when he 4 released the dog, took only “20, 30 seconds.” (Doc. 45-1 at 10.) 5 Williams didn’t give any verbal directions or commands to Plaintiff before releasing 6 the dog. (Id.) The dog attempted to bite Plaintiff, puncturing his skin, but the rest of the 7 bite only got ahold of Plaintiff’s jacket. (Docs. 45, 49 ¶ 31.) At that point, Williams noticed 8 that Plaintiff’s hands were restrained and almost immediately removed the dog from 9 Plaintiff. (Id. ¶ 33; Doc. 45-1 at 12.) The dog was never off-leash. (Id.) 10 Theobald did not see Williams deploy the dog but heard someone yell, “dog, dog, 11 dog.” (Docs. 45, 49 ¶ 42; Doc. 45-1 at 28.) “Theobald’s only involvement was escorting 12 [Plaintiff] to medical after the incident.” (Docs. 45, 49 ¶ 43.) Theobald testified that he 13 saw a “mark,” like a “long scratch,” on Plaintiff that did not “look like a typical dog bite.” 14 (Doc. 45-1 at 29-30.) Theobald testified that there was no puncture mark or tearing of the 15 flesh and that he did not see any “active” bleeding. (Id.) Theobald further testified that 16 Plaintiff had an abrasion or scratch on his back, which he would not classify as a “tear or 17 puncture.” (Id.) 18 A nurse noted that Plaintiff had sustained an avulsion wound on his back that was 19 eight centimeters long and .5 centimeters wide, which was seeping a scant amount of blood. 20 (Id. at 77.) The provider also noted, “the wound was cleaned with N.S. copiously, and pat 21 dri[e]d, applied bacitracin ointment and then a Telfa patch covered by two tegaderms side 22 by side.” (Id. at 78.) Plaintiff received a tetanus shot. (Id. at 82.) Another provider noted, 23 “Mid back has broken skin in a horizontal line about 8 inches across his back with no active 24 bleeding noted. I/M able to move and ambulate appropriately with no issues moving 25 anything noted.” (Id. at 85.) 26 Plaintiff had the wound dressing changed the next day with no significant concerns 27 noted. (Id. at 70.) Two days later, the provider noted, “Old dressing removed with no 28 1 drainage noted. Long superficial scratch on back which is aprox. 4 inches long.” (Id. at 2 67.) 3 II. Procedural History 4 On January 9, 2019, Plaintiff, who is represented by counsel, initiated this action by 5 filing a complaint. (Doc. 1.) 6 On February 19, 2019, Plaintiff filed an amended complaint. (Doc. 7.) 7 On July 29, 2019, Plaintiff filed a second amended complaint (“SAC”). (Doc. 25.) 8 On June 12, 2020, Defendants moved for summary judgment. (Doc. 44.) 9 On August 11, 2020, Plaintiff filed a response. (Doc. 48.) 10 On August 26, 2020, Defendants filed a reply. (Doc. 50.) 11 On February 18, 2021, the Court issued a tentative ruling. (Doc. 52.) 12 On March 2, 2021, the Court heard oral argument. (Doc. 53.) 13 DISCUSSION 14 I. Summary Judgment Standard 15 A party moving for summary judgment “bears the initial responsibility of informing 16 the district court of the basis for its motion, and identifying those portions of ‘the pleadings, 17 depositions, answers to interrogatories, and admissions on file, together with the affidavits, 18 if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” 19 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]o carry its burden of production, 20 the moving party must either produce evidence negating an essential element of the 21 nonmoving party’s claim or defense or show that the nonmoving party does not have 22 enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 23 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “If . . . 24 [the] moving party carries its burden of production, the nonmoving party must produce 25 evidence to support its claim or defense.” Id. at 1103. 26 “Summary judgment is appropriate when ‘there is no genuine dispute as to any 27 material fact and the movant is entitled to judgment as a matter of law.’” Rookaird v. BNSF 28 Ry. Co., 908 F.3d 451, 459 (9th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). “A genuine 1 dispute of material fact exists if ‘there is sufficient evidence favoring the nonmoving party 2 for a jury to return a verdict for that party.’” United States v. JP Morgan Chase Bank 3 Account No. Ending 8215 in Name of Ladislao V. Samaniego, VL: $ 446,377.36, 835 F.3d 4 1159, 1162 (9th Cir. 2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249- 5 50 (1986)). The court “must view the evidence in the light most favorable to the 6 nonmoving party and draw all reasonable inference in the nonmoving party’s favor.” 7 Rookaird, 908 F.3d at 459. Summary judgment is also appropriate against a party who 8 “fails to make a showing sufficient to establish the existence of an element essential to that 9 party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 10 U.S. at 322. 11 II. Williams—Excessive Force 12 Plaintiff argues that Williams violated his Eighth Amendment right to be free from 13 excessive force because “the release of [Williams’s] canine and the biting of Plaintiff was 14 an unnecessary and wanton infliction of pain. Plaintiff was not struggling or fighting with 15 the officers prior to the time when the canine was released to bite him. At all times, when 16 Plaintiff was standing up, and when he was taken to the ground, he was under the control 17 of two TSU officers. . . . Williams did not issue any orders or commands to Plaintiff prior 18 releasing his dog, despite a rule mandating this, and released the dogs within seconds of 19 Plaintiff being forced to the ground.” (Doc. 48 at 5-6.) Williams seeks summary judgment 20 on this claim on the grounds that (1) he didn’t violate Plaintiff’s Eighth Amendment rights, 21 and alternatively (2) he is entitled to qualified immunity. (Doc. 44 at 6-9.) As explained 22 below, the Court agrees that Williams is entitled to qualified immunity. 23 A. Excessive Force And Qualified Immunity 24 When a prisoner asserts that a prison official violated his Eighth Amendment rights 25 by using excessive physical force, the relevant inquiry is “whether force was applied in a 26 good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause 27 harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). As the Supreme Court has 28 emphasized, “not . . . every malevolent touch by a prison guard gives rise to a federal cause 1 of action.” Id. at 9. Thus, “[n]ot every push or shove, even if it may later seem unnecessary 2 in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.” Meredith 3 v. State of Ariz., 523 F.2d 481, 483 (9th Cir. 1975) (citation omitted), abrogated on other 4 grounds as recognized in Sinaloa Lake Owners Ass’n v. City of Simi Valley, 882 F.2d 1398, 5 1408 n.10 (9th Cir. 1989). 6 The Court considers the following factors when determining whether a defendant’s 7 use of force was malicious and sadistic for the purpose of causing harm: “(1) the extent of 8 injury suffered by an inmate; (2) the need for application of force; (3) the relationship 9 between that need and the amount of force used; (4) the threat reasonably perceived by the 10 responsible officials; and (5) any efforts made to temper the severity of a forceful 11 response.” Furnace v. Sullivan, 705 F.3d 1021, 1029 (9th Cir. 2013). Prison officials 12 “should be accorded wide-ranging deference in the adoption and execution of policies and 13 practices that in their judgment are needed to preserve internal order and discipline and to 14 maintain institutional security.” Whitley v. Albers, 475 U.S. 312, 321-22 (1986). 15 Meanwhile, “[q]ualified immunity shields federal and state officials from money 16 damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or 17 constitutional right, and (2) that the right was ‘clearly established’ at the time of the 18 challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). A government 19 official’s conduct violates “clearly established” law when “‘the contours of a right are 20 sufficiently clear’ that every ‘reasonable official would have understood that what he is 21 doing violates that right.’” Id. at 741 (citation and brackets omitted). Although there need 22 not be a “case directly on point,” “existing precedent must have placed the statutory or 23 constitutional question beyond debate.” Id. In other words, the case law must “have been 24 earlier developed in such a concrete and factually defined context to make it obvious to all 25 reasonable government actors, in the defendant’s place, that what he is doing violates 26 federal law.” Shafer v. Cty. of Santa Barbara, 868 F.3d 1110, 1117 (9th Cir. 2017). See 27 also Hamby v. Hammond, 821 F.3d 1085, 1095 (9th Cir. 2016) (“[T]he farther afield 28 existing precedent lies from the case under review, the more likely it will be that the 1 officials’ acts will fall within that vast zone of conduct that is perhaps regrettable but is at 2 least arguably constitutional. So long as even that much can be said for the officials, they 3 are entitled to qualified immunity.”); Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (“This 4 Court has repeatedly told courts—and the Ninth Circuit in particular—not to define clearly 5 established law at a high level of generality.”) (internal quotation marks omitted). 6 “Once the defense of qualified immunity is raised by the defendant, the plaintiff 7 bears the burden of showing that the rights allegedly violated were ‘clearly established.’” 8 LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000). See also Romero v. Kitsap County, 9 931 F.2d 624, 627 (9th Cir. 1991) (“The plaintiff bears the burden of proof that the right 10 allegedly violated was clearly established at the time of the alleged misconduct.”) (citation 11 omitted).3 Although it “is often beneficial” to begin the analysis by addressing whether a 12 statutory or constitutional right has been violated, district courts are vested with discretion 13 to determine “which of the two prongs of the qualified immunity analysis should be 14 addressed first in light of the circumstances in the particular case at hand.” Pearson v. 15 Callahan, 555 U.S. 223, 236 (2009). 16 B. Analysis 17 Plaintiff’s theory is that because he wasn’t struggling or fighting with the TSU 18 officers, Williams had no legitimate reason to deploy a dog against him (and, thus, the 19 decision to deploy the dog can only be attributed to a malicious and sadistic desire to cause 20 harm). The problem with this theory is that it is not supported by the record. Although the 21 parties may disagree about the extent to which Plaintiff was struggling with the TSU 22 3 Although LSO and Romero place the burden on the plaintiff, other Ninth Circuit 23 opinions hold that “[q]ualified immunity is an affirmative defense that the government has 24 the burden of pleading and proving.” Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017). These opinions are difficult to reconcile. See generally Slater v. Deasey, 943 F.3d 898, 25 909 (9th Cir. 2019) (Collins, J., dissenting from denial of rehearing en banc) (“The panel 26 committed . . . error in suggesting that Defendants bear the burden of proof on the disputed qualified-immunity issues presented in this appeal. . . . [T]he applicable—and well- 27 settled—rule [in the Ninth Circuit] is that ‘[t]he plaintiff bears the burden of proof that the 28 right allegedly violated was clearly established at the time of the alleged misconduct.’”) (citation and emphases omitted). 1 officers before Williams deployed the dog, Plaintiff cannot sidestep his own deposition 2 testimony. There, he admitted that he was engaged in some form of struggle with the TSU 3 officers: 4 Q. So, the officers had indicated that they wanted to place you in the dirt, and you said you would rather be placed on disciplinary and put in 5 isolation; is that accurate? 6 A. Yes. 7 Q. And what did they do next? 8 A. They proceeded to turn me and walk me towards the softball field. 9 * * * 10 Q. And at this point were you struggling in any way? A. I stopped walking. 11 * * * 12 Q. And what happened next? 13 A. They continued to try to make me walk towards the baseball -- I mean, 14 the softball field. And at this point, I kind of, like, went – I tried to sit 15 down, like – in protest of going to the softball field. Q. Would you consider that struggling with those officers? 16 A. Yeah. Yes. 17 Q. And what did the officers do in response? 18 A. Slammed me on the ground. 19 (Doc. 45-1 at 49, emphasis added.) 20 Thus, even construing the disputed facts in the light most favorable to Plaintiff, 21 Williams was confronted with a situation in which (1) he observed, from about 20 yards 22 away, Plaintiff “struggling” with a pair of officers, (2) he had “particular concern” about 23 the security risks posed by the struggle because many other inmates were milling about, 24 unrestrained, due to the contraband search that had just been conducted (Docs. 45. 49 ¶¶ 25 23-24); and (3) he was unaware that Plaintiff’s hands were restrained. Faced with these 26 circumstances, Williams made a quick decision to deploy his dog—as noted, Williams 27 testified without contradiction that the entire sequence, from when he observed Plaintiff 28 standing by the TSU officers to when Plaintiff was taken to the ground by those officers to 1 when he released the dog, took only “20, 30 seconds.” (Doc. 45-1 at 10.) And it is 2 undisputed that as soon as Williams realized that Plaintiff’s hands were restrained, he 3 pulled back the dog and stopped the bite. 4 There is a colorable argument that the deployment of a dog under these 5 circumstances does not amount to a violation of the Eighth Amendment. As noted, the 6 Ninth Circuit follows a five-factor test for assessing claims of excessive force in the prison 7 context. Here, the first factor (extent of injury) cuts in Williams’s favor—although Plaintiff 8 was bitten by the dog and suffered a bite wound, the evidence establishes that the wound 9 wasn’t severe and that Plaintiff didn’t suffer any complications. Thus, Plaintiff suffered at 10 most a minor injury. Likewise, the fifth factor (efforts made to temper severity) cuts 11 strongly in Williams’s favor because he removed the dog from Plaintiff almost 12 immediately after the initial bite, thereby avoiding serious injury. 13 The second, third, and fourth factors (need for use of force, relationship between 14 need and force used, and whether the defendant reasonably perceived a threat) present a 15 closer question. Had Williams released the dog despite the absence of any struggle 16 between Plaintiff and the TSU officials, these factors would cut in Plaintiff’s favor. See, 17 e.g., Kesler v. King, 29 F. Supp. 2d 356, 372 (S.D. Tex. 1998) (“Plaintiffs allege that 18 Defendant Cisneros, the K-9 handler, allowed his dog to bite as many as five inmates 19 without provocation. . . . These claims clearly allege violations of Plaintiffs’ constitutional 20 right to be free from excessive force in the prison setting.”). Cf. Mendoza v. Block, 27 F.3d 21 1357, 1362 (9th Cir. 1994) (“[N]o particularized case law is necessary for a deputy to know 22 that excessive force has been used when a deputy sics a canine on a handcuffed arrestee 23 who has fully surrendered and is completely under control.”). But those aren’t the facts 24 here. Because Plaintiff admits that he did struggle with the TSU officers to some degree, 25 and because the situation unfolded so quickly and in such a chaotic, potentially dangerous 26 environment, it is far from obvious that Williams’s decision to use deploy the dog was 27 unnecessary. Cf. Eason v. Frye, 972 F. Supp. 2d 935, 943-44 (S.D. Miss. 2013) (granting 28 summary judgment to prison guard, where plaintiff alleged that the guard used excessive 1 force by releasing a dog to bite him, because the plaintiff had “caused a disturbance by 2 threatening an officer” and “refused to stop fighting when Officer Frye ordered him to 3 stop” and thus “caused an obvious threat to security” that entitled the guard to “appl[y] the 4 amount of force necessary to restore order on the tier”). Although Plaintiff’s description 5 of his struggle with the TSU officers paints a picture of passive rather than active resistance, 6 the Ninth Circuit has recognized that, at least for Fourth Amendment purposes, “[e]ven 7 purely passive resistance can support the use of some force.” Lowry v. City of San Diego, 8 858 F.3d 1248, 1259 (9th Cir. 2017) (en banc). Furthermore, even if Williams 9 misperceived the threat posed by Plaintiff’s struggle with the TSU officers, the Constitution 10 doesn’t prohibit reasonable mistakes of fact. Cf. Graham v. Connor, 490 U.S. 386, 397 11 (1989) (“[T]he calculus of reasonableness must embody allowance for the fact that police 12 officers are often forced to make split-second judgments—in circumstances that are tense, 13 uncertain, and rapidly evolving—about the amount of force that is necessary in a particular 14 situation.”); Torres v. City of Madera, 648 F.3d 1119, 1124 (9th Cir. 2011) (“Where an 15 officer’s particular use of force is based on a mistake of fact, we ask whether a reasonable 16 officer would have or should have accurately perceived that fact.”). Thus, although the 17 second, third, and fourth factors do not cut decisively in Defendants’ favor, they do not cut 18 decisively in Plaintiff’s favor either.4 19 Had Williams only moved for summary judgment on whether he violated Plaintiff’s 20 Eighth Amendment rights, the uncertainties discussed above may have counseled in favor 21 of allowing a jury to resolve that question. Cf. Green v. City & Cty. of San Francisco, 751 22 F.3d 1039, 1049 (9th Cir. 2014) (“Because this inquiry is inherently fact specific, the 23 determination of whether the force used to effect an arrest was reasonable under the Fourth 24 4 In his response, Plaintiff argues that Williams’s failure to provide a verbal warning 25 before releasing the dog constituted a violation of the prison’s administrative guidelines. (Doc. 48 at 3-4.) But whether a prison official has “violated a state law or an internal 26 departmental policy is not the focus of our inquiry. Rather, our focus is on whether a reasonable officer would have known that the [challenged] conduct violated [the 27 plaintiff’s] federal statutory or constitutional rights rather than merely a state law or policy provision.” Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 929 (9th Cir. 2001) 28 (citations omitted). See also Cousins v. Lockyer, 568 F.3d 1063, 1070 (9th Cir. 2009) (“state departmental regulations do not establish a federal constitutional violation”). 1 Amendment should only be taken from the jury in rare cases.”) (citation omitted). But 2 because Williams also moved for summary judgment on qualified-immunity grounds, the 3 Court has discretion to decide that issue before resolving the constitutional question. 4 Pearson, 555 U.S. at 236. 5 The Court will follow that approach here because Williams’s entitlement to 6 qualified immunity is clear. In his motion, Williams argues he is entitled to qualified 7 immunity because “there is no Ninth Circuit or Supreme Court precedent establishing that 8 using a canine to apply force to a prisoner constitutes excessive force.” (Doc. 44 at 9.) In 9 his response brief, Plaintiff does not address, let alone refute, this argument. Instead, 10 Plaintiff contends that “[t]he doctrine of qualified immunity does not protect an officer who 11 did not act reasonably in his or her actions.” (Doc. 48 at 11.) But this is not the appropriate 12 way to overcome a defendant’s invocation of qualified immunity—it is pitched at far too 13 high of a level of generality. Although there need not be a “case directly on point,” 14 Ashcroft, 563 U.S. at 741, it was still Plaintiff’s burden to identify settled law that would 15 have placed Williams on notice that the deployment of a dog under these circumstances 16 was unconstitutional. Tuuamalemalo v. Greene, 946 F.3d 471, 477 (9th Cir. 2019) (“The 17 right must be settled law, meaning that it must be clearly established by controlling 18 authority or a robust consensus of cases of persuasive authority.”). Because Plaintiff did 19 not even attempt to do so5—and because the Court has not, through its own research, 20 5 During oral argument, the Court gave Plaintiff a belated opportunity to identify “your best case . . . that would have given fair notice to Williams that deploying a dog 21 under these circumstances violates the Eighth Amendment.” In response, Plaintiff identified Graham v. Connor, 490 U.S. 386 (1989). If anything, this response underscores 22 why Williams is entitled to qualified immunity. In Graham, the plaintiff was a diabetic suffering from an insulin reaction who briefly entered a convenience store in a search for 23 orange juice. Id. at 388-89. A police officer who witnessed the plaintiff’s exit from the store “became suspicious that something was amiss” and made an investigative stop. Id. 24 After other officers arrived at the scene, they tightly handcuffed the plaintiff (who had briefly passed out), shoved his face into a car, threw him headfirst into a police car, and 25 refused to allow him to drink orange juice. Id. Not only are those facts far different from the facts of this case, but the legal issue in Graham (which the Court ultimately did not 26 resolve) was whether the officers’ conduct violated the Fourth Amendment’s prohibition against excessive force. Id. at 398-99. The Court specifically noted that “[d]iffering 27 standards [apply] under the Fourth and Eighth Amendments” and characterized the “Eighth Amendment standard” as the “less protective” of the two. Id. It is an understatement to 28 say that Graham did not arise from “such a concrete and factually defined context to make it obvious to all reasonable government actors, in [Williams’s] place, that what he is doing 1 uncovered a case authorizing liability under similar circumstances—Williams is entitled to 2 qualified immunity. 3 III. Valdez And Theobald—Failure to Intervene 4 “[A] prison official can violate a prisoner’s Eighth Amendment rights by failing to 5 intervene” when another officer acts unconstitutionally. Robins v. Meecham, 60 F.3d 1436, 6 1442 (9th Cir. 1995). 7 Valdez argues he cannot be held liable under a failure-to-intervene theory because 8 he was located approximately 40-50 yards away from Plaintiff and was responsible for 9 supervising approximately 50 other prisoners who were congregated on the basketball 10 court. (Doc. 44 at 5.) Valdez further contends that he would not have been able to 11 intervene once Williams released the dog because he had been trained that only the dog’s 12 handler can deploy or remove a dog. (Id.) In response, Plaintiff contends that Valdez 13 “stood by and watched all what happened and did nothing to prevent” Plaintiff “from being 14 attacked” by the dog. (Doc. 48 at 9.) Plaintiff asserts that “[i]t should have been obvious” 15 that he “presented no threat to them or himself once he was placed on the ground with his 16 hands zip tied behind his back.” (Id.) 17 Plaintiff’s conclusory arguments lack merit. It is undisputed that, at the time 18 Williams deployed the dog, Valdez was located 40 to 50 yards away and was responsible 19 for monitoring 50 other prisoners. The incident occurred very quickly and Williams pulled 20 back the dog almost immediately after the first bite. “[O]fficers can be held liable for 21 failing to intercede only if they had an opportunity to intercede.” Cunningham v. 22 Gates, 229 F.3d 1271, 1289 (9th Cir. 2000). See also Ting v. United States, 927 F.2d 1504, 23 1512 (9th Cir. 1991) (“[T]he agents were positioned around the room away from Burns 24 and Ting and were thus physically incapable of preventing the incidents surrounding the 25 shooting, all of which transpired in a matter of seconds. Therefore, it cannot be said that 26 the agents’ failure to intervene was the cause in fact of Ting’s injuries.”). Here, no 27 reasonable jury could find that Valdez had a reasonable opportunity to intercede. 28 violates federal law.” Shafer, 868 F.3d at 1117. 1 Plaintiff’s failure-to-intervene claim against Theobald fails for similar reasons. It is 2 undisputed that Theobald was 150-200 yards away from Plaintiff when the incident 3 occurred, that Theobald didn’t even see Williams release the dog, and that Theobald’s only 4 involvement was to escort Plaintiff to the medical unit after the incident. (Docs. 45, 49 ¶¶ 5 20, 41-43.) On these facts, no reasonable jury could find that Theobald had a reasonable 6 opportunity to intercede. 7 IV. All Defendants—Medical Care 8 To support a medical care claim under the Eighth Amendment, a prisoner must 9 demonstrate “deliberate indifference to serious medical needs.” Jett v. Penner, 439 F.3d 10 1091, 1096 (9th Cir. 2006) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). There are 11 two prongs to the deliberate-indifference analysis: an objective standard and a subjective 12 standard. First, a prisoner must show a “serious medical need.” Jett, 439 F.3d at 1096 13 (citations omitted). A “‘serious’ medical need exists if the failure to treat a prisoner’s 14 condition could result in further significant injury or the ‘unnecessary and wanton infliction 15 of pain.’” McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992), overruled on other 16 grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997)). 17 Second, a prisoner must show that the defendant’s response to that need was 18 deliberately indifferent. Jett, 439 F.3d at 1096. “Prison officials are deliberately 19 indifferent to a prisoner’s serious medical needs when they deny, delay, or intentionally 20 interfere with medical treatment.” Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002) 21 (internal citations and quotation marks omitted). Deliberate indifference may also be 22 shown where prison officials fail to respond to a prisoner’ s pain or possible medical need. 23 Jett, 439 F.3d at 1096. 24 Deliberate indifference is a higher standard than negligence or lack of ordinary due 25 care for the prisoner’s safety. Farmer v. Brennan, 511 U.S. 825, 835 (1994). “Neither 26 negligence nor gross negligence will constitute deliberate indifference.” Clement v. Cal. 27 Dep’t of Corrs., 220 F. Supp. 2d 1098, 1105 (N.D. Cal. 2002). See also Broughton v. 28 Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (mere claims of “indifference,” 1 “negligence,” or “medical malpractice” do not support a claim under § 1983). A mere 2 delay in medical care, without more, is insufficient to state a claim against prison officials 3 for deliberate indifference. Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 4 407 (9th Cir. 1985). The indifference must be substantial. The action must rise to a level 5 of “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 105. 6 Even if deliberate indifference is shown, to support an Eighth Amendment claim, 7 the prisoner must demonstrate harm caused by the indifference. Jett, 439 F.3d at 1096; see 8 Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989) (delay in providing medical 9 treatment does not constitute Eighth Amendment violation unless delay was harmful). 10 Plaintiff did not specifically assert an Eighth Amendment medical care claim in the 11 SAC. (Doc. 25.) Nevertheless, in his response to Defendants’ motion, Plaintiff contends 12 he was denied prompt medical attention. (Doc. 48 at 6.) He asserts that when he told the 13 officers he needed medical attention because he had been bitten, one of the officers 14 responded, “they didn’t bite you,” which “completely ignore[d]” Plaintiff’s request for 15 help. (Id.) In their reply, Defendants note that Plaintiff was escorted to the medical unit 16 within ten minutes of the incident and that Plaintiff returned for daily wound care over the 17 following week. (Doc. 50 at 5.) 18 Even accepting as true that Plaintiff did not receive medical attention for his bite 19 wound for ten minutes, Plaintiff has not shown that he suffered any further injury as a result 20 of the delay. Plaintiff suffered a superficial laceration that did not require stitches and he 21 experienced no complications, such as infection. Thus, Defendants did not violate 22 Plaintiff’s Eighth Amendment rights with respect to his medical treatment. 23 … 24 … 25 … 26 … 27 … 28 … ITIS ORDERED: 2 (1) The reference to the Magistrate Judge is withdrawn as to Defendants’ 3) Motion for Summary Judgment (Doc. 44). 4 (2) Defendants’ Motion for Summary Judgment (Doc. 44) is granted. 5 (3) The Clerk of Court shall enter judgment accordingly and terminate this 6 | action. 7 Dated this 2nd day of March, 2021. 8 9 fm ee” 10 f t _o—— Dominic W. Lanza 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28